also found That the Earl having first acquired a profitable Tack of the same Lands during the Marriage and afterwards baving acquired the property the Ladies Lyferent of the Lands extended no farther than to the Tack-Duty contained in the Tack first acquired On this ground that the Lady was not provided to the Lyferent of Tacks albeit it might have seemed that the Tack was extinguished by the Property But still the Lords do restrict these Clauses as much as they can bear As to the Fifth Pretending to Answer the Decisions adduced it is answered That the Decisions in case of Heirs of Conquesce do by much more strong reason cut off the conclusion of this Pursuers process For Heirs of Conquesce are more favourable in relation to Conquesce than Relicts as was expresly found in the Case of the Lady Kilbocho against the Laird and Lady Rentoune against the Laird where Lands Conquest were burdened with annual-annual-rents of a part of the price resting albeit in both the Lords declared they would have found otherwise in the Case of Heirs of Conquesce so that Heirs of Conquesce being more favourable than Relicts what ever doth exclude their Interest in Conquesce must much more exclude the Relicts Interest and the pretence that Heirs of Conquesce do represent the Defunct whereas Relicts are Creditors is of no moment because in competition with Creditors they are considered as Heirs but in respect of the Heirs of Lyne which is the Case of all the Decisions they are most favourable Creditors To the Sixth Founding upon the last Clause of the Contract anent sums due during the Marriage alledged to be insert for a farther Security than the common Clause of Conquesce which varies this Case from all these beside it It is answered The Defender hopes he has already sufficiently cleared that by the construction of the words in the Contract nothing is comprehended that fell due after the Marriage Et separatim it is hoped that the Reasons already adduced why the import of that Clause as the Pursuer would have it signifies no more than a common Clause of Conquesce and consequently must be subject to the saids burdens and be concluded with the same Decisions and the force of what hath been said is the more evident that the Pursuer found her self obliged to recede from the first conclusion of the Summonds for Imploying all sums due and received without exception and did restrict the same to the sums imployed for the Payment of Debt and in quantum Lucratus whereby it is evident that Law does not sustain such an Obligment to imploy All sums received in the full Latitude of the Clause And if it cannot be effectual as it stands in the Style of words we must then consider what is the Cause why Law restricts the effect of such Obligments and we shall find the Cause to be the same why Law restricts the effect of Conquesce as being against the Interest and meaning of Parties the rights of Property and Commerce and that such Clauses are only Destinations Again if we consider the Syle of both Clauses Clauses of Conquesce are as peremptor to imploy all sums Conquesced as this is alledged to be for sums during the Marriage And seing the last Clause cannot be effectual in the full Latitude more than the first what other estimate can be made thereof than the known Marches and Land Marks by which the Lords have bounded the effect of Conquesce And as clauses of Conquesce do easily run in relation to sums purchased and acquired so suppose a clause of Conquesce should run in these Terms All sums Purchased Acquired and received during the Marriage can it be supposed that the word Received should make an alteration in the Case or are not sums Acquired during the Marriage Purchased And are not sums Purchased Received during the Marriage So the terms being Convertible they cannot vary the Decision 2. Et separatim tho' it had been the express meaning of Parties to have obliged the Deâ—â—nâ—â— to 〈…〉 to be Received by him yet such an Obligation could not have been effectual in Law Because a Husband by his Jus Mariti hath right to all moveable sums falling under Communion of Goods And farther his right thereto is unaccountable and the Jus mariti of an Husband it is so fixed and insured by Law that inhaerit Ossibus and cannot possibly be renounced in favours of the Wife by any deed of the Husbands directly nor indirectly Whereas by this clause as it is interpreted the Husband should be effectually denuded of his Jus mariti in favours of his Wife in so far as he would thereby be accountable to his Wife for her lyfrent-use for his intromission with moveable sums which in Law do belong to him unaccountably And as it is not controverted that the Jus Mariti doth imply an unaccountable right in the Person of the Husband so it hath been found on most Just grounds that this right is incommunicable to the Wife in the case of the Lady Pilton against Hay of Balhousie 2d February 1667. Where a bond of 1000. Merks yearly being granted to a Wife to be disposed of as she pleased secluding the Husbands Jus Mariti The Lords found that payment made to the Husband without the Wifs consent did exoner the Debitor and exclude the Wifs executors Which clears that a right could not be so qualified but that it behoved to be Simply transmitted to the Husband or null But for farther evidence that even the deed of the Husband himself cannot divest him of his Right It was sound 13 July 1678 that a Husband having renounced his Jus mariti to a part of his Wifes Joynture in favours of his Wyfe the right thereof did return to the Husband albeit he suffered his Wife to possess the renunced Lands all her life time yet the extant product of these Lands did belong to him and that he himself could not be excluded by the personal objection of his own Renounciation The like was found in the case of Hamilton against the Lady Carberry And if the Husband could not by a Direct deed renounce the unaccounntable management much less can he do it by a general and separate Clause which would in consequence import a renounciation thereof to his Wife for the Jus mariti consists not only in the Management but it must be unaccountable 3 Et Separatim the Defender cannot be lyable In quantum Lucratus upon this Clause tho' it could be effectual in Law unless it were subsumed and offered to be proven that he was Lucratus by applying sums of money received during the Marriage to the payment of his Debts For albeit it were instructed that the Defunct did receive considerable sums of Money and also that he payed considerable sums due by him yet that could not infer that these debts were payed by sums of Money received during the Marriage seing the Defunct had another Subject than Sums of Money out
yet it will not follow that he can do such Deeds in defraud of the Relict as may absolutely evacuat the Clause As also in that Case the Relict had a special Lyfe-rent Provision besides the Lyfe-rent of the Conquesce And that Decision is so far from making against the Lady that it makes expresly for her In sua far as in that Case the Lords ordained Probation to be led for proving the Condition of the Husbands Estate the time of entering into the Contract of Marriage and what was the worth and value thereof the time of the Dissolution of the Marriage To the effect that in sua far as the Husbands Estate was better the time of the Dissolution of the Marriage than the time of the Contract The Relict might have the benefit of the Lyferent thereof as Conquesce And as to any other Decision alledged upon for the Lord Collingtoun they are either in the Case of a Competition betwixt the Heirs of a first and second Marriage or in the Case betwixt Heirs of second Marriages and Creditors which does not at all meet this Case And whereas it is alledged that the Lady has aliunde a sufficient Joyntute albeit she get nothing of the Lord Collingtoun and so is not destitute of a Provision It is answered That albeit the Lady have a Joynture aliunde yet seing she has nothing from the Lord Collingtoun except the House and Yards of Collingtoun which is not worth the speaking of yet that can be no Argument why she should not have a Joynture off the Lord Collingtoun be vertue of that clause in her Contract of Marriage his Father having received so great sums of Money during the Marriage partly out of the Ladie 's Joynture and partly out of his Pensions and Sallaries by which he made his Estate so much in a better condition the time of the Dissolution of the Marriage than it was the time of the Contract And albeit the Lady get a large Joynture yet the Lord Collingtoun will not be destitute of a Provision seing he has gotten a large Estate with his Lady In respect whereof c. Additional Information for the Lady Castle-haven against the Lord Collingtoun TO evince the Ladie 's Claim beyond exception and in answer to all the Practicks that have been or can be obtruded The Pursuer not only insists upon the foresaid clause anent the Lord Collingtoun his receiving payment of sums of Money due to him during the Marriage But farther doth press preceisly the former clause of Conquesce viz. That the Lord Collingtoun hath Conquest and acquired sums of Money during the Marriage For seing that it is undeniable that he hath cleared and reconquest his own Estate which before the Marriage was sunk in more Debt then it was wâ—rth and that this could not be done without his acquiring of sums of Money It is evident that he hath acquired sums of Money and that these acquisitions are really still extant if not in Specie yet in their undeniable effects If the Pursuer were only insisting upon Collington's Conquescing and Acquiring of Lands and Heretages and urging that the Reconquescing of his Estate was a real Conquesce The practick touching the clearing of old Wodsets and the purchasing of accessional Rights and finding these to be no new Conquesce of Lands might be objected with some shew of reason but the Case of these Practicks was only concerning Conquesce of Lands which is not the principal point now in Controversie But the point here urged is That the Lord Collingtoun did purchase and acqâ—ire sums of Money and this is evidently made out both that he did acquire them and that they are yet truly extant so that its impossible to frustrate the Pursuer of the benefit of this head of the Conquesce unless the Defender can as plainly make it out that the Lord Collingtoun did Reconquesce the Estate by sums not of his own acquiring but by the Defenders Tocher and Means which can never be made out seing the Conquesce of the Estate doth far exceed all the Portion the Defender got with his Wife and there is a great part of that yet unreceived Neither is it to any purpose to debate here how far the Lord Collingtoun might exhaust his Conquesce by contracting of Debt or doing other Rational Deeds seing that the Debt which the Lord Collingtoun left at his Death is always acknowledged that it is to be deduced and for other rational Deeds there is none can be alledged except the conveyiâ—g of his Estate to his Son and appeirand Heir the Defender which is no exhausting but a transmitting of the Conquerâ—◠〈…〉 to perform his Fathers obligment It s true it is alledged that the Lord Collingtoun's paying of his old Debts with the Moneys that he acquired were rational Deeds But it is as true that these Deeds does no wayes exhaust the Conquesce but rather establish it It being plainly ridiculous for a man to alledge that his getting and applying sums of Money for the payment of his Debt and clearing of his Estate and thereby making himself Richer should be an exhausting of Conquesce since it is absolutely the best evidence can be brought for it and the best use that can be made of it so that all the practicks about the exhausting of rational Deeds are here Impertinent and prove nothing Nor is there the least Injustice in what the Defender alledges for a great Absurdity viz. That the Heir Male of the Marriage if any had been should by this means have carried away my Lord Collingtouns Estate from his Son in the former Marriage For not to insist upon the good Estate the Lord Collingtoun hath got by his Marriage what could be more reasonable then that the Heir Male of the Marriage should have the Fee of what was really acquired during the Marriage And there fore seing this Obligment of Conquesce is made to the Pursuer in her Contract of Marriage and that its undeniable that the Lord Collingtoun did Conquesce and Acquire sums of Money which are yet most really extant in their abiding effects It is impossible the Lady can be deprived of her Lyferent thereof in sua far as the sums were truly acquired by him and not brought into the Family by the Defender aliunde Information for my Lord Collingtoun against The Lady Castle-haven Relict of the deceast Lord Collingtoun his Father WHen the deceased Lord Collingtoun was Married to his last Lady in Anno. 1661 he was under considerable burden of Debt and least my Ladies Joynture of 80 Chalders of Victual by her former Husband might be affected by my Lords Creditors several conveyances thereof were made in trust and by the Contract of Marriage my Lord did Renounce his Jus mariti to the said Joynture and took his hazard of what he might have otherwayes by my Lady and farther my Lord bound and oblidged him that in case it should happen him at any time during the Marriage betwixt him and
his said Lady to conquesce and aquire any sums of Money Lands or Heretages or to receive payment of sums of Money due to him in that case to imploy the samen in favours of himself and his future Spouse in conjunct fie and lyfrent and the Heirs male to be procreat betwixt them which failing to my Lord his other Heirs who are appointed to succeed him in his other Lands and Heretages There is a process at the Ladies instance against this Lord Collingtoun as representing his Father upon the passive Titles libelling that the defunct did after the Marriage conquesce and acquire the Sum of 260000 Merks and concluds that the defender should be decerned to imploy the same for the Pursuers Lyferent use And urges that conclusion upon the clause of the Contract of Marriage above mentioned containing two separate and distinct obligments The one To take the Lands Heretages and sums of Money to be Conquesced during the Marriage And the other To Imploy all sums of Money due to him whereof he should receive payment during the Marriage likewise to my Ladie 's Lyferent use Whereby it doth appear that my Lady did not intend to rest upon a clause of Conquest in the usual Style but did farther provide for her own security by adjecting the posterior Clause oblidging my Lord to imploy all sums of Money to be received during the Marriage to her liferent use which was most Just and Reasonable seing my Lords condition at the time did not suffer him to secure any present joynture his Estate being affected with many incumbrances it was therefore highly reas nable that what ever sums he should receive during the Marriage should be secured for her liferent use It was answered for the Defender denying the passive Titles 〈…〉 oâ— these Clauses contained in the contract of Marriage unless the Pursuer will condescend upon Lands Heretages sums of Money Conquest during the Marriage and extant unconsumed at the Dissolution thereof Or that the Defunct had received sums of Money due to him the time of the contract of Marriage for as to the Clause of Conquesce There has been no point in our Law more fully and clearly determined than the Import thereof both in relation to Heirs of Provision and Relicts in Contracts of Marriage for the various circumstances of Children or Relicts having the benefit of those Clauses have prompted them upon several Specialities to endeavour the extensions of such Clauses in their Favours upon some pretences of differences from the Cases formerly decided whereby upon consideration of the most important Decisions in that point it will appear that the Lords have scarce ever varied since there were Practicks upon Record anent the import of Clauses of Conquesce which they have ever found to give Relicts or Heirs of Provisions the Benefit of what Conquest did remain unconsumed at the death of the Husband or Father and that such Clauses could not hinder the Acquirer from the full free and unaccountable Administration of his own Estate during his Life and to dispose of his own by any just or rational Deed at his pleasure providing that nothing were done fraudulently for evacuating of such Clauses And farther The Deeds of the Acquirer are not only sustained when the Conquesce is consumed but even when the Conquesce of Lands Heretages or sums of Money is extant at the dissolution of the Matriage the same is affected and burdened with all the Debts of the Acquirer not only for onerous but also for gratuitous Causes there being always a just and rational consideration such as the Provision of Children with suitable Portions and even a Provision of an eldest Son hath been frequently sustained as a paternal Deed and if in any Case gratuitous Debts or Deeds of the Acquirer have been annulled at the instance of Relicts or Children of a Marriage the same has always been upon the head of Fraud or that there was no just cause for making such Deeds and these Deeds are not only sustained in favours of Creditors to affect the Conquesce but they have even been sustained as burdens upon the Conquesce whereby Relicts or Heirs of Provision have no Action against the Representatives of the Acquirer to Disburst the Conquest of these Debts The Decisions in this matter are so numerous and the Cases so various that it were tedious to relate them but the Defender did both in his Debate and by a particular Note a part offer a few of them to the Lords consideration whereby it will appear that the ground of all is one viz. That Conquesce is burdened with all rational Deeds of Administration of the Acquirer As to the second Clause whereby it is pretended that All sums of Money due during the Marriage and received by the Defunct ought to be Imployed for the Pursuers Liferent use It is answered That the Lords are intreated to consider the Clause as it stands in the Contract which is very far from Importing that Sense which is fixed upon it For by the first Clause the Conquesce during the Marriage was designed to be secured in the ordinary Style of Conquesce And by the second all sums due to my Lord before the Marriage were designed to be secured to my Lady and that which was in Prospect was a Debt due upon the Estate of Huntley And my Lord had just ground to expect that the same might have been made effectual to him who was then in great Favour and had suffered much for the King and it was not sit to express the Debt particularly in the Contract least being propaled it might have been affected by his Creditors and as this was the true Communing so it is impossible the words of the Clause can bear another Sense which runs in these Terms viz. He obliged himself in case it should happen him to purchase or acquire sums of Money Lands or Heretages or to receive payment of Debts due to him to imploy c. Whereof the construction of the last Clause is in case he shall happen to receive payment of sums due to him where Sums due must in propriety of Language signify a Preterit that the sums â—â—â—turo was in case it should happen him to receive these sums And the prospect of receiving of sums must alwayes presuppose the sums due And the first end of the Clause relating to Purchase of sums thereafter the natural Alternative subjoyned to that Provision is sums dew already whereby all sums were secured to my Lady whether due before or purchased after the Contract with the legal burden of my Lords full and free Administration during the Marriage And whereas the words of the Clause as the Pursuer would construct them run thus In case it should happen my Lord during the Marriage to receive payment of sums deue even this construction though it be not natural or suitable to the Clause yet it alters not the Case one hairs breadth For in that construction the words during the Marriage which signify
of Debts during the Marriage And in the case of the Lady Dumfermling against her Son 26. November 1629. Where the Superiour having acquired the property of Fews and having again fewed the same Land for greater Few duties These additional Few duties were not reckoned Conquesce Because the Right of the Fews came to the Husband by Vertue of Irritancies contained in the Fewars Charters incurred before the Marriage and whereby no duty out of these Lands could be reckoned Conquesce during the Marriage 6. The Pursuer did not rest in a single clause of Conquesce to which all the Decisions did relate but did farther provide for her Security by 〈…〉 to imploy all Sums during the Marriage which must at least oblige the Defunct in so far as he and his Heires were Lucrati by imploying these sums for the reliefe of his Estate which clause must either have that import or none at all For no body can imagine that the Pursuer would consider that uncertain claim upon Huntlies Estate to be of any value and if nothing else had been considered that would have been particularly exprest and it was most rational that the Defunct should grant such an obligement Because my Lady by the conveyance of her Joynture did secure 36. Chalders Victual for the maintenance of the Family which being sufficient for maintenance and all necessary expences it was most Just that what other sums might be received by the Defunct should be imployed for the Ladies lyfrent use yet notwithstanding of the setlement at the Contract It is offered to be proven that my Lord by himself did intromet with 24. Chalders of the victual allocat for the entertainment of the Family by which means my Lady was necessitat to take up her Joynture in the North which she had disponed to her Children at the time of the Contract and to consume the same for the Intertainment of the Defuncts Family So that it cannot be thought an invidious claim that my Lady should desire her lyfrent equivalent to the debts payed by that part of the Joynture which was allocat to the intertainement of the Family It was duplied that all the pretences insisted upon Joyntly or separatly have no shaddow of relevancy in them and 1st As to the first Alledgance viz. That the Pursuer insists only for a lyfrent of what is extant Conquesce during the Marriage by relieving the Estate that was overburdened and thereby was Locupletior factus It is answered that as the lybel could not relevantly conclude the imployment of all sums purchased and received during the Marriage but with the burden of all rational Deeds So neither can it be sustained as it is now restricted for the lyfrent of the Lands relieved and in quantum the Defunct was Lucratus because Law doth allow all Husbands a free and â—ull Administration and they 〈…〉 of Conquesce for what is consumed by that administration and as they might have wasted and spent all unprofitably so much more might they apply the same for payment of debts which is not only a rational but a necessary deed and if the Creditors had not found the Defunct so just in his Inclinations they would have compelled him thereto either by personal diligence or by affecting his Estate and the pretence of Locupletior factus imports nothing unless the Pursuer could subsume in the terms of the obligment that the Defunct had been Locupletior factus in Lands Heretages or sums of Money which here cannot be alledged for the Defunct was only Locupletior factus by payment of his urgent Debts which is neither a fraudulent administration nor was he thereby enriched in the Particulars enumerat in the clause of Conquesce and consequently my Lady had no Interest in that gain for clauses of Conquesce are strictly interpret and never extended beyond the precise Words therfore a wife having right to Conquesce of Lands hath no right to sums acquired and she who has right to Lands and sums has no right to Victual Plenishing Plate Jewels or moveables of any sort So that if the Defunct at his decease had been worth 10000 pounds Sterling in other moveables than sums of Money the Pursuer could not have acclaimed any interest therein which may satisfy the Lords that there was not such an anxious concerne to make this Conquesce secure when Goods and Geir and all moveables were omitted in the Clause which are oft provided as Conquesce and as the Defunct had power to have turned all his free Estate in such moveables so much more could he pay his urgent Debts and releive his ancient Estate without providing the same to his Lady and the Children of his second Marriage to the exclusion of his legal Heirs 2. The releiving of the Lands of Collingtoun cannot in Law be reckoned a Conquesce of these Lands because a Conquesce Is a new few to which the Defunct neither did nor could succeed as Heire to any of his Predecessors and the Defender desires that the Pursuer would condescend upon any former practick where ever a Wife or Heirs of provision did pretend that a Husband or Father could not pay his Debts in prejudice of a Conquesce so that if there be little decided in this it is because few or none have ever pretended to call it in Question on the contrary all that is found to approach to this Case is a debate betwixt the Countess of Dumfermling and her Son 26. November 1629. And Fraser contra Fraser lately decided By the first of which Decisions the Lords found That the Earl of Dumfermling having acquired the right of property of certain fews during the Marriage which he fewed out again for greater few-duties that the Countess had no interest in these additional Few duties by the clause of Conquesce And whereas it is pretended that the ground of this Decision was because the Fews were declared Null upon irritancies before the Marriage this alledgance is gratis dictum and without the least vestige of reason from the Decision which was upon just grounds because the Earl having a Dominium Directum any improvement of that Dominium during the Marriage was not regarded as a Conquesce And the Lords had formerly great regard to this Decision in the case of the Laird of Niddrie against his Brother where the Father having a right upon the Lands of Lochtoure preceeding the second Marriage albeit the same would have been ineffectual in competition with Rights acquired during the second Marriage yet the Lords found that the posterior rights were presumed to have been acquired for validating and compleating the anterior Right and that they did accresce thereto and the Son of the second Marriage had no in-Interest therein as Conquesce And in the case of Fraser and Fraser the Husband at his Contract did put a valuation upon the Estate he had over and above certaine Ackers of Land which he declared should not be estimate any part of the Conquesce yet the Relict having
of which he could have payed his Debts viz 24. Chalders of Victual yearly as a part of the Pursuers Joynture which in the debate is acknowledged to have been allocat for the Defuncts free disposal at his pleasure Suppose then that the Defunct had consumed his Sallaries and Pensions upon the charges and expenses of his Family or upon other reasonable and creditable occasions as it is acknowledged he might have done freely and unaccountably and that he were Lucratus by applying the saids 24. Chalders of Victual for the payment of his Debt he could not be said to be Lucratus by sums of Money but only by Bolls of Victual for which by the clause he is not accountable and if the Pursuer will assert that he is Lucratus by sums of Money Asserenti incumbit probatio And farther he had other subjects out of which payments might be made viz. The Lands of Collingtoun which were stocked as also he sold 100000. Merks worth of Lands and there is nothing more ordinary than for overburdened Heritours to obtaine great eases when they have ready money to pay whereby the said 100000. Merks may have payed 100000 pounds of debt So that my Lady cannot be exonered upon a presumptive but must adduce a positive probation that my Lord was Lucratus by sums of Money 4 The Pursuer must not only prove that the Defunct was once Lucratus by payment of his Debt but that the said Lucrum did remaine with him till the dissolution of the Marriage 〈…〉 purging any of the Debts did upon a just and reasonable cause dispose of his releived Lands to his eldest Son by Contract of Marriage as is alledg'd the Pursuer cannot claim any interest in that purchass But it appears evidently by the Contract that the Defender was then designed to suceced to his Father in these Lands in so far as the very Clause upon which the Pursuer founds her conquesce to be provided to her in lyfrent and the Bairns of the Marriage in fee which failing to the Defuncts other Heirs appointed to succeed him in his other Lands and Estate whereby it appears that as the Defender was the lineal Legal Successor of his Father the Pursuer did not then envy his succession to the Estate of Collingtoun which by her own clause of Conquesce is designed his other Lands and Estate so that the Lands of Collingtoun can never be reckoned Conquesce nor can the Pursuer quarel the convoying the right therof to the Defender seing by her own Contract it is declared that his present Lands and Estate not contracted was designed to descend to his Lineal Heirs which could not be unless it had been also Lawful to purge the same of Debts being then burdened above the value and as it was arbitrary to the Defunct not to have made any Purchase so he might justly dispose of it But that the Lords may be satisfyed how Calumnious and groundless this great noise of Purchase is they would be informed that the Defender being Married in Anno. 1670. Within a few years after the Contract it was not possible the Defunct could make any purchase before the Defenders Marriage Because all the Subject of his Estate was my Ladies Joynture of 36. Chalders of Victual 200 pounds Sterling of Sallary and the Lands of Collingtoun not then exceeding 3000 Merks out of this he had all the necessary charges of his Family Servants Coach and Horses to lay out and the Defender to intertain in his travels and the Annual-rent of his weighty debt to pay after which deductions there will remaine no place for Conquesce And after the Defender was Married he lived in that intire Confidence with his Father that all the portion he received which was known to be 〈…〉 by his Father to him was as much possest and enjoyed by his Father as by himselfe never having heard of this pretence of Conquesce and looking upon his Fathers interest and his own as the same many sums affecting the Estate were payed by him without so much as mention from whom the money was received and there were no Assignations taken to any Debt but alwayes Renounciations and Discharges so that if this Covetous pretence should hold foot my Lady should lyfrent the Defenders portion which was four times greater then the Conquesce it being impossible to distinguish the one from the other In respect whereof the Lords are humbly intreated to give distinct interloquitors upon the several grounds abovementioned and particularly 1 Anent the Extent and Import of the clause of Conquesce 2 Anent the Import of the second clause if it does relate to sums due or falling due after rhe Marriage 3 If the same could be of any greater force than a clause of Conquesce tho' it did relate to sums due after the Marriage 4 If by such a construction the second clause would not be equivalent to a Renounciation of the Jus mariti as to these sums in favours of the Wife and if such a Renounciation can consist with Law and former Decisions 5 If the Pursuers probation of the payment of Debts and the receiving of sums of Money could infer a sufficient evidente that these Debts were payed by the sums of Money seing there were other Subjects out of which the Debts might have been payed 6 If the Defunct can be reckoned Lucratus seing he did not Die in the fee of these Lands releived but was denuded thereof upon a most just and rational account sine fraude which are all distinct grounds separatly proponed A List of the Decisions related to in the Lord Collingtoun's Information against the Lady Castle-haven THat the Husband hath the absolute Administration and Managment of all Rents Annual-rents and other Moveables belonging to his Wife during the Marriage notwithstanding any Renounciation of his Jus Mariti thereto in Favours of the Wife is evident from these following Decisions viz. 9 February 1667. Lady Collingtoun contra Lord Collingtoun The Lords found that the Clause in my Lord Collingtoun's Contract renouncing his jus mariti in favours of his Lady did not debar my Lord from the management and administration of the Rents destinate for maintenance of the Family and that albeit the administration and management had been expresly renounced by him in the said Contract The said renounciation had been contra bonos more 's and so void and null in Law and that the Husbands administration being the Inherent Right and Priviledge of the Husband as such was absolute and unaccountable and could not be renounced in favours of the Wife 13 July 1678. Nicolson contra Inglis The Lords found that a Wife having in her Contract of Marriage reserved a Power to dispose upon her Liferent without the Husbands consent and the Husband having renounced his jus mariti to what was so reserved The said renounciatidid recurre and accress to the Husband himself by the Marriage and after Decease of the Husband allowed Compensation to the Heirs of
An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Areskine Lady Castle-haven Relict of the Deceased Sir James Foulis of Collingtoun against Sir James Foulis now of Collingtoun before the Lords of Council and Session WITH CERTAIN REMARKS Upon the Import and Extent of PROTESTATIONS For Remeed of LAW in General And in Particular upon the Protestation or Appeal offered by the LADY EDINBVRGH Printed at the Society of Stationers Printing-hâ—â—â—â— Harts-Close over-against the Trane Church 〈…〉 An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Arsekine Lady Castle-haven Relict of the Deceased Sir James Foulis of Collingtoun Against Sir James Foulis now of Collingtoun before the Lords of Council and Session DAme Margaret Areskine Lady Castlehaven having succumbed in a Process pursued at her Instance against Sir James Foulis of Collingtoun She did Appeal and Protest for Remeed of Law against the Interloquitor of the Lords of Session And in prosecution thereof hath caused Print and publish a Petition to be presented by her to the High Court of Parliament In which she doth not offer any distinct Relation of the Process Debate or Decision but satisfies her self with general groundless Assertions of the Justice of her Cause and of the Iniquity of the Decision whereby she pretends All Faith in Contracts is Violated the Law which ought to protect Widows wrested to their Ruine And fraud and indirect Dealings are not only encouraged but own'd to be the design of Law And which Decision as it is pretended Doth impugne Law Equity Justice and Honesty The Lady hath not thought fit to disperse or publish any part of the Process or Debate upon which the Interloquitor proceeded For verifying of this great Charge against the Supreme Ordinary Court of Justice in the Nation whom our Predecessors thought worthy to be the Depositars of the Securities of their own and our Properties and Possessions but she is pleased to lay the weight of all upon her own Assertion And albeit bold Calumnies do oft-times leave some Impression yet this being a matter of the highest Concern to the Interest and quiet of all not only those who have Process depending but such as may have them It cannot be unacceptable that Collingtoun should publish to the World the whole Process and Debate upon which the Interloquitor of the Lords of Session proceeded which indeed had been the proper part of the Lady who makes the Complaint By which means either the Lady's Charge will be made good or otherwayes the Justice of Collingtoun's Defences and the Integrity of the Lords will be Vindicate and the Nation satisfied and quieted in the Evidence that their Rights and Securities are safely lodged And it is left to the Judgement of all unbyassed persons whether the former or latter doth appear upon perusal and consideration of the Process which followeth with so great Candor and Favour to the Lady that no part of her Claim or any Evidence thereof produced is omitted though several Decreets and Instructions produced for Collingtoun be forborn least the Process might thereby appear too prolix Copy of the Lady's Contract of Marriage AT Edinburgh the first day of June one thousand six hundred and sixty one years It is Appointed Agreed Contracted and Ended betwixt the Honourable Parties following to wit Sir James Foulis of Collingtoun Knight one of the Senators of the Colledge of Justice on the one part And Dame Margaret Areskine Relict of Vmwhile Sir Joh. MckenÈie of Tarbat on the other part in Manner Form and Effect following That is to say the foresaids Parties Binds and Obliges them to Solemnizat and Accomplish the Holy Band of Marriage each of them with the other in face of Holy Kirk with all Solemnities requisite betwixt the date hereof and the _____ day of _____ next to come but longer delay In Contemplation of the which Marriage the said Sir James Foulis Binds and Obliges him to Renounce Quite-claim and Over-give Likeas he by thir Presents Renounces Quite-claims and Over-gives all Right Tittle and Interest which he jure mariti can have claim or pretend in and to the said Dame Margaret her Conjunct-Fee and Liferent-Lands Teynds and others belonging to her wherever the samen lye within this Kingdom declaring the generality of this present Renounciation to be as sufficient as if the said haill Conjunct-Fee or Liferent-Lands Teynds and others were insert and set down here intill Renouncing all Benefit of the Law or other Benefit whatsoever either competent or that may accress to him by this Contract or by the subsequent Marriage or by any manner of way whatsoever to her saids Conjunct-Fee or Liferent-Lands or any part thereof for now and ever in Favours of her self to be used and disposed of at her pleasure And by thir Presents doth take his hazard of what he may have otherwayes by the said Dame Margaret And farder The said Sir James Foulis by thir Presents Binds and Obliges him his Heirs Executors and Successors That in case it shall happen him at any time during the Marriage betwixt him and the said Dame Margaret to Conquesce and Acquire any sums of Money Lands or Heretages or to Receive payment of Sums of Money due to him in that case to Imploy the samen And take the Rights and Securities thereof in Favours of himself and the said Dame Margaret the longest Liver of them two in Conjunct-fee and Life rent and to the Heirs-male to be Procreat betwixt them Whilks failing to the said Sir James his other Heirs who are appointed to succeed him in his other Lands and Heretages And in case their shall be no Heirs Male but Female The said Sir James Binds and Obliges him and his forsaids to provide them to the half of the said Conquest and the other half thereof to pertain and belong to the said Sir James his other Heirs foresaids Which Provision above-written the said Dame Margaret accepts likeas it is hereby declared That the samen is granted and provided to her ard Heirs foresaids to be Procreat of the said Marriage in full contentation and satisfaction of all other Conjunct-Fee Terce Third Right of Moveables Heretage or any other Right whatsoever except allennarly the Mannor Place and Dwelling-house of Collingtoun and Yairds thereof which are hereby appointed and allotted to the said Dame Margaret for a Dwelling-house during her Life-time Providing always she sufficiently Maintain and Uphold the said House and Houses in as good Condition as they shall be in at the time of the said Sir James his Decease And that she shall not Directly or Indirectly be her self or any others in her Name or at her Direction cut or destroy any manner of growing Trees or Planting about the said House or Yairds or within any part of the Bounds of Collingtoun for no pretext nor use whatsoever And for the more Security both the saids Parties are content and consent that thir Presents be insert and Registrat in the Books of Council and
and upon the express Provisions and Conditions above written and no other wayes And in case it should happen the said Perseuer to survive the said Deceased Sir James Foulis her Husband It is thereby declared That in that Case the foresaid Right of Life-rent abovewritten was only in trust and to her own proper use and behove like as in the forsaid case the said deceased Mr. Alexander Foulis band and obleist him and his forsaids to transfer the premisses in favours of the said persewar like as he thereby transferred the samen in her Favours As the said back band of the date forsaid insert and registrated in the Books of our Council and Session upon the 17 of January 1667 years more fully proports And in like manner be Contract of Marriage past betwixt the said deceased Sir James Foulis of Collingtoun and the said perswar on the ane and other partes of the Date the first day of June and year of God foresaid 1661 years in contemplation of the Marriage then Contracted and thereafter solemnized the said deceased Sir James Foulis band and obleist him to Renounce Quite-claim and overgive like as he thereby renounced quite claimed and overgave all Right Title and Interest which he Jure mariti could have claime or pretend in and to the said persuer her conjunct-fie or lyfe-rent Lands Teynds and others belonging to her wherever the samen lye within this our Kingdom Renouncing thereby all Benefit of the Law or other Benefit whatsomever whilks might accrew to him by the said Contract or any manner of way whatsomever to her said conjunct fie or Liferent Lands or any part thereof for ever In Favours of the said persuer to be used and disposed of at her pleasure and did thereby take his hazard of what he might have otherwayes by the said persuar And further the said deceased Sir James boulis did thereby bind and obleis him his airs executors and successors that in case it should happen him at any time during the Marriage betwixt him and the said persuer To conqueis and acquire any sumes of money lands or heretages or to receive payment of sumes of money due to him In that case to imploy the same and take the rights and securities thereof in favors of himself and the said persewar the longest liver of them two in conjunct-fie or lifrent the said Vmwhile Sir James his other Airs who are appointed to succeed him in his other Lands and Heretages As the said Contract of Marriage of the date foresaid Insert and Registrat in the Books of Our Council and Session upon the said 17 day of January 1667. years likewayes more fully proports And true it is and of verity that the said Vmwhile Sir James Foulis the said persewers Husband during the time of the foresaid Marriage hes Conquest and Acquired and hes received payment of sums due to him which will extend to the sum of two hundreth and threescore thousand Merks which by the foresaid Contract he was obleist to imploy and secure upon Lands and Heretages and take the Rights and Securities thereof in Favours of himself and the said persewer the longest liver of them two And by the foresaid Back-band the Mailles and Duties of the said Lyferent Lands provided to the said Persewer in manner foresaid extending yearly to the number of thirty six Chalders of Victual was to be Imployed for the Maintenance of the said Deceast Sir James Foulis and the said persewer their Family Nevertheless the said Vmwhile Sir James Foulis hes not Imployed and Secured the said sum of two hundreth and threescore thousand Merks Conquest and Acquired and received by him as said is and taken the Rights and Securities thereof in Favours of himself and the said persewer and the longest Liver of them two in Conjunct-Fee and Lyfe-rent as said is nor yet did he Imploy the said threttie six Chalders of Victual for the Maintenance of his own and the said persewers Family but did actually uplift and Intromet with twenty four Chalders of Victual of the said 36 Chalders of Victual for the particular years of God after specified of the quantities qualities and pryces after rehearsed viz 22 Chalders of Bear and two Chalders of Meal yearly out of the Lands and Barrony of Innerteil and that for the Cropts and Years of God 1661 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 and 1687 years each Boll of the said Victual Meal and Bear over head being worth six Pounds Money of this our Realm communibus annis of the years above mentioned conform to the Current pryces of such Victual grow and in that part of the Countrey And that the said persewer during the said space of twenty six years did Maintain the said Deceist Sir James Foulis his Family with all suitable Intertainment and did pay the rent of his Lodging wherein he Dwelled during the said spaces and payed all Servants Fees And albeit Sir James Foulis now of Collingtoun eldest lawful Son and appeirand Air to the said Vmwhile Sir James Foulis his Father and Executor nominate and confirmed to him at least Successor to him in his Lands and Heretages titulo lucrativo post Contractum debitum and universal Intromettor with his moveable Airship Goods and Geir and Charter Chist ought and should secure the said persewer in an Lyfe-rent Right during all the dayes of her Lyfe-time of the said Sum of two hundreth and threescore thousand Merks Conqueist Acquired and received by his said Father as said is and to make payment to her of the said 24 Chalders of Victual uplifted by his said Vmwhile Father out of her said Lyfe rent Lands which should have been applyed for the Maintenance of her Family as said is And that for the particular years of God and Cropts above exprest of the quantities and qualities particularly above rehearsed or liquidat pryces thereof above-mentioned extending to the sum of fifty nine thosand nine hundreth and four Pounds Money foresaid after the Form and Tenor of the foresaid Contract of Marriage and other Writs above deduced in all points Nevertheless he wrongously refuses so to do without he be compelled Our Will is herefore c. Given under our Signet at Edinburgh the twenty day of February and of our Reign the 4th year Information for Dame Margaret Areskine Lady Castle-haven Against The Lord Collingtoun THE deceist Lord Collingtoun being ingaged in debts above the value of his Estate In the treatie of Marriage betwixt him and Dame Margaret Areskin by the advice of Lawyers there was threttie Six Chalders of victual of the Lady's joynture conveyed before the Marriage in the name of Ratho for the mantenance of the Family And in the contract of Mariage Collingtoun did renounce his jus mariti that his Ladys Estate might not be subject to his Creditors and their being nothing to which he should provide her all her interest in the contract did depend
upon this Clause That incase he shall happen at any time during the Marriage to conquesce and acquire any sums of money Lands or Heretages or to receive payment of sums of money due to him in that case to imploy the same and take the Rights and Securities thereof in favours of himself and the said Dame Margaret Areskin and the longest liver of them two in conjunctfie And for this hope of Conquesce my Lady renounced the terce of heretages and third of moveables competent to her by Law My Lady pursues this Lord Collingtoun as representing his Father for the lyfrent of the sums conquest and received by his Father during the Marriage And condescends upon the particulars sums received by my Lord Collingtoun for 24 Chalders of Victual of the Lady's Joynture lands yearly besides what was Imployed for the use of the Family and for Sallaries Pensions and otherwayes It was alledged for the Defendar 1. That it could not be subsumed that My Lord Collingtoun had aquired Lands or Heretages during the Marriage and that sums imployed for payment of Debts or clearing a mans heretages from Incumbrances was never understood Conquesce but only an accessory Right to the Heretage And therefore in the competition betwixt an Heire of Conquesce and an Heir of Line where the Predecessor had a null defective Right and thereafter had aquired a valide and effectual Right to the same Lands It was not found Conquest to belong to the Heire of Provision but to belong to the General Heire as accessory to the Heretage 2. a Clause of Conquest can never be understood to bind up the Fiar or denude him of the Faculty and Capacity to imploy or dispose upon the Conquest at his pleasure and therefore Clauses of Conquesce Imports no more but that ane Heire of Provision or Relict shall succeed or lyfrent what Conquesce remains undisposed upon at the Fiars decease 3. The last clause or if I shall happen to receive any Sums due to me does relate to debts which was then due to Collingtoun and particularly a sum due by the Marquess of Huntly and if that sum should be recovered it was to be lifrented by my Lady But the Clause cannot be extended beyond sums due to him at the Marriage and all sums that should become due to him did fall under the former clauses of Conquesce It was replyed for my Lady 1. The clause in her Favours Is not only a Clause of Conquesce But to take off all debate or Cavil that might arise anent the Interpretation of Conquesce this special Clause is subjoined that whatever sums my Lord Collingtoun should receive Eo ipso that he received the sums he became bound to imploy them in lyfrent to my Lady and this by the advice of Lawyers who could expect nothing from the Lord Collingtoun but his Pensions and Sallaries from the King to which he had great pretensions these sums as soon as ever they came to be received became subject to her Lyfrent and therefore my Lady has it in her Option either to insist on the Clause of Conquesce for all the sums of mony that were imployed in the redeeming of the Estate of Collingtoun or for the Lyfrent of the sums Lybelled as he received them 2. Clauses of Conquesce are most ordinary and known securities and it were absurd and against the common Faith of Contracts of Marriage which of all others ought to be most Sacred to render such obligations Elusorie and at the arbitriment of the partie ingaged and debitor in these obleisments And albeit Heirs of Provision or Conquesce as they are Creditors so they do represent and succeed and as they can have no Action against their Predecessor so they are bound to have a regard and the Law in some Cases hath releived them from the severity of their obleisment in favours of their own Successors and hath allowed them a latitude to dispose or imploy their conquest to all necessary and even rational uses But a Wife is meerly a Creditor and therefore the obleisment of Conquesce in her favours ought to be more strictly and rigidly observed then to Heirs And yet the Law nor practique did never relax any obleisment of Conquesce to thaâ— degree that the debitor in the obleisment might prejudge the obleisment and totally evacuat the same and certainly it were a plain defrauding of this obleisment If my Lord Colligtoun did imploy the conquest of this Marriage to releive his Estate of debts contracted in a former And if this Doctrine hold if their had been Heirs of this Marriage they should not have had a sixpence notwithstanding they are provided out of the Conquesce which would loose all the Faith and Security of Contracts 3. Whatever latitude the Lords may take where a Wife is otherwayes provided and hath only the Conquest as a General and accessory clause yet where a wise gets nothing but the Conquesce it were absurd totally to frustrat and defraud Her 4 In contemplation of this Conquesce the Lady did renounce a third of the Estate of Collingtoun and it is inconsistent with the Reputation or Justice of the Session to debar her from the Conquesce by sustaining the imployment of the Conquest for redeeming of that heretage whereof she had renounced her terce 5. The other half of the Clause puts the debate of Conquesce out of Doors and founds the Ladies Right upon the precise receiving of mony And whereas it is pretended that the Clause is only relative to sums due at the Marriage and not to sums that should become due during the Marriage It is answered 1. This is no distinct Clause but a separat view or part of the former viz. And in case he shall happen at any time during the Marriage to conquesce and acquire sums of Money Lands or Heretages or to receive any sums of money due to him viz During the Marriage Which is understood to be repeated as well at the last as at the first part of the clause And if it had been otherwayes designed it had been easie to have Exprest it thus presently belonging to him And the word due to him was to exclude my Lady from any interest that she might pretend to sums borrowed and received by him And it is evident that it is all but one Clause because the obleisment to Imploy is subjoyned to both And â—herefore the words acquired during the Marriage must be understood to be repeated in relation to the sums received due to him as well as the sums Lands and Heretages are to be imployed to my Lord and Lady in lyfrent and Children in fie 2. In common Stile when men speake of sums belonging to them at the time they doe not say received but in case they shall uplift or where the sums are doubtful incase they shall recover and Receive is never used but either in relation to Donations or where money is offered and the parties required to receive their Money 3. It cannot
same albeit it was alledged that the price of the Lands was not payed but was resting the time of his Fathers decease and that the Son as representing him is lyable for the same And it is subjoin'd that the like Decision was done the 11 of Januar. 1632. The Lady Bonningtoun contra Hadden and the 27 of Jun. 1676 The Earl of Dumfermling contra the Earl of Callander where the Lords found that a general Clause of Conquesce did extend to what the Husband had acquyred during the Marriage more then what he had the time of the contract of Marriage with the burden of all his Debts contracted during the Marriage that was esteemed Conquesce which was free over and above the debt contracted during the Marriage By which it is evident that in so far as the Estate was meliorat and in a better condition the time of the dissolution of the Marriage than it was the time of the contract that was to be esteemed Conquesce and that no debts were to be deduced but these that were contracted during the Marriage And as to the Decisions adduced for the Lord Collingtoun the 26 of November 1629 Where the Lords found that Lands being acquired be the Husband from the Seller of the Lands and thereafter disponed in few again to the same seller for ane greater few duty than was contained in the sellers priors Rights The augmentation of the few duty be the Husband could not be repute ane Conquesce whereof the Relict might Claim a lyfrent as coming under the clause of Conquesce of the contract And in the case of James Wauchop contra the Laird of Niddrie in the year 1683 where the husband having right to the Lands prior to the Marriage and during the Marriage having acquired partial Rights were not found to fall under the clause of Conquesce It is answered that these Decisions doe not meet this case for as to that of the Lady Dumfermling against her Son It was in the case betwixt a Superiour and a Vassal where a Superior having pursued a Reduction against his Vassal and the Vassals rights being found null for want of Confirmation and the Superiour having given a new right to the Vassall for augmentation of the few-duty that was not found Conquesce In respect there was no new acquisition the Superior having right to the Lands before the Marriage and his right to the property of the few being only declared after the Marriage by reduceing of the Vassals right and therefore albeit the Superior gave a new right to the Vassal augmenting the few-duty That augmentation was not repute Conquesce to give the Relict the benefit of the lyfrent thereof And that this was the case of that Decision it is cleare by the Decision the last of June 1629. Betwixt the same Persons And as to the Case of Niddrie and his brother first the question there was betwixt the Heir of Line and the Heir of Conquesce of the second Marriage which does not meet in this case Next the partial rights acquired by the husband after the Marriage was found not to fall under the Clause of Conquesce in respect that the Husband had belonging to him of money and other estate of great value prior to the Marriage of which any sums of money he depursed after the Marriage in acquiring rights to the Lands was the true product and might be ascribed to the sums of money and other estate which belonged to him before the Marriage And as to the case of Cowan contra Young the 9th of February 1669 where a Father having given a bond of Provision of 400 pound to a Daughter of the first Marriage was sustained and found to affect the Heir of Conquesce of the Second Marriage And the 15 of July 1673 Robertson contra Robertson where the Lords found that a clause in a contract of Marriage providing the lyfrent of the conquesce to the Wife did not hinder the Husband to give competent provisions to the Children And Smith contra Muire 23 December 1668. Where it was found that such a clause did not prejudge Creditors but the Relict that intrometted with the moveables falling under the conquesce was found lyable for the Debt And in the case of Frazer contra Cumming the 8 of December 1687. Where the Lords found the Provision granted to the Children of the first Marriage was to be deduced out of the conquesce in prejudice of the Relicts lyfrent as also that his debts ought to be deduced and 11000 pound that he had reserved to himselfe be the contract of Marriage and the superplus only to be repute Conquesce It is answered that the case of Cowan Young being betwixt a Child of the first Marriage and the Heir of Conquesce in the second Marriage it did not meet the case of a lyfrenter next it was only but a small provision granted be a Father to his Child of the first Marriage whom be the Law of Nature he is oblidged to provide As also in that Case the Heir of the second Marriage had a special provision and something also of the Conquesce so that the Fathers granting a moderate provision to a Child of the first Marriage was not understood a defrauding of the Children of the second Marriage And the case of Robertson contra Robertson albeit the Lords found that such clauses could not exclude competent provisions to the Children of the same Marriage which was most Just yet it is with this express quality that there were competent means for a provision to the Mother remaining and that the husband had done nothing fraudfully in prejudice of that clause And the case of Smith and Muir was betwixt a Relict and a Creditor And it is not controverted but that a true and Lawful debt contracted by the Husband during the Marriage should deduce off the Conquesce And as to the Case of Frazer and Cumming it was thus By contract of Marriage betwixt Alexander and Christian Frazers The Husband did provide his Wife to ane certain yearly Annuitie in lyfrent and likewayes to the lyfrent of the clause of conquesce reserving to himself certain tenements of Lands and others extending to 11000 pounds and all the question there was in relation to the import of the Reservation as to the 11000 Pounds if the Husbands Debts should affect the 11000 pounds or be deduced out of the Conquesce Upon which the Lords found that the import of the clause of the Contract is that in the first place There ought to be deduced out of the Husbands Estate extant the time of his Decease the Debts then due and next that the 11000 Pounds is to be deduced and what remains only is to be repute Conquesce By which it is evident that the 11000 Pounds that belonged to the Husband the time of the entring into the Marriage was deduced in respect of the express reservation And albeit a Husband may grant a Provision to a Child of the first Marriage
Futurition have not the least relation to sums due which are still in Preterito but they do only relate to the receipt of the Money So the Clause doth import that if sums then due should be received during the Marriage they were to be Imployed but it is altogether force against the natural construction to mention these words During the Marriage In the first Clause which can neither relate to the Receipt of the Money Because if that Money upon the Estate of Huntely should be received or secured though after the Dissolution of the Marriage the Pursuer would have a Liferent thereof by the Clause which she could not claim if the condition run In case during the Marriage the Money were rece ved Neither is it possible that the words During the Marriage can relate to sums due For Sums due during the Marriage is Nonsense Sums due being Preterite and during the Marriage being then Future unless for my Ladies Conveniency she be allowed to add a word or two to make the Sense as she would have it and that she should be permitted to Interpret the Clause in thir Terms viz Sums falling due or becoming due during the Marriage For without the Addition of these words or other of the like Import it is impossible in naâ—ure that ever theâ—e words 〈…〉 by any construction that can be forced upon the Clause as it stands And if such violence were put upon it then it would still disagree with what has been evidently communed viz That Huntleys Debt already due should be Liferented if received For if only sums falling or becoming due Thereafter were to be imployed then there were no Obligation as to these which were already due And it would be a wonderful streatch that could make the same words signify both Preterite and Future Secundo Suppose the words of the Clause should be strained as the Pursuer contends to an Obligment of Imploying all sums due during the Marriage yet it is not possible to extend the Importance of that Clause farther than an ordinary clause of Conquesce and consequently the Husbands Obligation would only be prestable with the burden of all rational Deeds For the Clause of Conquesce oblidges to bestow All sums of Money Conquest during the Marriage And the second Clause obliges as is pretended to Imploy All sums falling due during the Marriage to be received by the Defunct Which is all one Clause for all sums falling due during the Marriage that the Defunct could receive must be sums Conquest during the Marriage and consequently if the Obligment to imploy the Conquesce cannot secure the Pursuer from the burden of all rational Deeds neither can the Oblidgment of imploying sums falling due which is the same thing And it is not the variation of the Style or words that will evert the effect of such a train of Decisions nor is it possible that the Defunct or any reasonable man would have agreed to such an extravagant Clause whereby all his Fortune was then wholly over-burdened so he should have been Incapacitate for ever to render it in a better condition for himself or his Heirs For though in this Case there be eventually no Children of the Marriage which might probably have existed my Lady being then little past 40. And being as careful to provide for them as her self yet if they had existed the Defunct would have been Incapacitate that his eldest Son might succeed which in consequence would have drawn his Creditors upon him that he could not have had his person safe when they found that he could not apply one sixpence for their payment out of what he had or could acquire It was replyed that the Pursuers Lybel is most Relevant both upon the Conquest and subsequent Clause And albeit the Pursuer doth not alledge that any sums of Money Lands or Heretages Conquest during the Marriage are extant seing the Defunct did apply these sums acquired and falling due during the Marriage for payment of the Debts affecting the Estate and Lands of Collingtoun The Defunct being Locupletior factus by applying these sums for the Relief of his own Estate which by the Conrract ought to have been imployed for the Pusuers Lyferent use the Lady ought to have the benefit thereof and doth not claim any Lyferent of sums spent and consumed but where there is ane existing benefit inriching the Defunct she ought to have a lyfrent of the Lands releived to which she restricts her lybel and craves no more neither upon the first nor second Clause of the Contract 2. Conquesce in favours of Wives or Children is alwayes understood in so far as the Husband is richer at the Dissolution of the Marriage than he was at the time of the Contract And the defunct being richer in the value of the hail Lands redeemed my Lady ought to have the lyfrent thereof 3 Decisions in matters of Conquesce have varied according to the circumstances of the cases Debated and all of them have this notable difference from the Pursuers Case that in these Decisions the Relict had special suitable provisions and the Conquests were only adjected as general uncertaine Clauses upon which the Relicts did not depend But here there is no special provision except the House and Yeards of Collingtoun and all that was depended upon was the clause of Conquesce which was advised by my Lord Dirlingtoun and eminent Lawyers who thought fitter to take the defunct obliged in the termes of the Contract than to take a it cannot be imagined that so eminent a Lawyer would advise a clause that would be absolutely Elusory tho' the defunct made his fortune during the Marriage 4. There are also several Decisions which fortify the pursuers Case as particularely a decision Skeen contra Robertson 4 March 1624. where a band of Provision to a Daughter was found to be lyable to the Relicts lyfrent by her clause of Conquesce And in the same case the Husband having acquired right to a Salmond Fishing near Aberdeen which by the custom of the place could not be bruiked by a Woman yet the relict by her Conquesce was found to have utilem actionem against the heir for the value And in the case of the Countess of Dumfermting against her Son Lands being conquest originally in the name of the eldest Son the Countess was found to have right to Lyfrent these Lands tho' never in the Person of the Father The like _____ Where a Right originally acquired in the name of a second Son was also affected by the Relicts lyfrent upon a clause of Conquest 50 The Decisions adduced in the Case of Children provided to Conquesce import nothing because all Children doe represent the Defunct in so far as they have benefite by him whereas the Relicts are most favourable Creditors and the Decisions adduced in the case of Relicts are of no moment as that Lands conquesced or burdened with the Debts due expresly for the purchase thereof nothing being reckoned but with deduction
acclaimed a lyfrent of the Conquesce during the Marriage the following points were therein decided viz. 1 That the Father having immediatly after the second Contract provided 6000 Merks to his eldest Son beside the forsaid capital of 11000 pounds and his Daughter to 5000. Merks and allowed 1000 pounds for her Wedding Cloaths and having payed a great part of these sums very shortly after the Contract before it was possible to have acquired so much money as could have payed the same yet the Lords found that these sums so contracted and payed were not to be taken off the capital of 11000 pound of his Estate before the Marriage but the whole capital foresaid behoved to be deduced before reckoning the Conquesce at the Dissolution 2. In that case they found that all Debts were to be deduced both those that were prior and those that were posterior to the Marriage as appears by the debate immediatly preceeding the Interloquitor which was done upon deliberation by the whole Lords and thereafter represented of new by two several Bills containing the whole favourable circumstances of the Case and particularly that the Relict had but a very mean provision besides the Conquesce upon which she could not live all which appears by the forsaid Decreet marked at the several debates and interloquitors and what is now pretended is far less favourable then any of these Cases To the second alledging that Conquesce is alwayes understood in sua far as the Husband was richer at the Dissolution then at the Contract of Marriage It is answered that the grounds abovementioned doe fully satisfy this pretence for the estimation of the Husbands being Richer must be made with relation to these particulars whereof the Contract is provided to the Wife and if the Husband have provided a Wife to lyfrent the Conquest Lands and Heretages only it is not to be considered how far the Husband is become Richer in sums of Money Goods and Geir whereof the Wife hath no clause of Conquesce or if the provision of Conquesce be of Lands Heretages and sums of Money as in this case tho' the Husband had purchased a great Estate in Jewels Plate Victual Cattel or any moveables that is not to be considered but only how far he is become richer in Lands Heretages and sums Conquest which is not pretended in this Case but only that he is richer by payment of his Debts and reâ—eiving of his Lands And seing my Lady did not take my Lord oblidged to imploy all Goods Geir and movables whatsomever it is a demonstration that she did not intend to tie him so closs as is now pretended but left to his own discretion whether he would enrich himself in these particulars provided for her lifrent-use or in others wherein she had no interest To the third it is admired that the Lady should recur to Decisions to fortify her pretence for in all the Decisions for above sixty years there is no variation except in that pretended Decision adduced be the Pursuer Skeen contra Robertson which has not been seen by the Defender not being in Durie nor any citted known Writter and whereof the circumstances doe not appear and all others doe agree in this that a Husband or Father may not only do all onerous Deeds but may give Liberalities and Gratuities even to Children or to the Heir where there is a rational Cause much more may urgent Debts be payed whereto the Acquirer could be compelled And as to the only defence against all the Decisions upon the singularity that the Pursuer had no special provision and that by the advice of an eminent Lawyer It was thought fitter to take these general Clauses then a provision of 3000 Merks yearly It is answered this speciality makes no alteration it being impossible to find different Cases so perfectly agreing but some circumstances will vary but here the rule of the Lords Decisions is that all rational Deeds shall be sustained and if this be such a circumstance that it renders the payment of the Debt in prejudice of the Conquesce fraudulent then it is relevant but not otherways and still there is to be a difference wade betwixt first and second Contracts of Marriage for if a man in his first Contract of Marriage gave no special provision but a clause of Conquesce whereby if the Husband should voluntarly evacuat the Conquesce the Wife of his youth and Mother of his Children would become destitute and miserable It were infamous in him to evacuate such a Conquesce except by inevitable Deeds and any voluntary Deed would in Justice be reckoned fraudulent but in a second contract where there is no portion but a joynture that returns at dissolution the like favour is not due For if the Relict have an honourable provision whether by the first or second Marriage it imports not yea there is nothing more ordinary then that Heiresses do content themselves with the lifrent of their own Heretages and oft times with less yet in the case Robertson against Robertson 15th July 1673. It is plead for the Rclict who was Wife of the first Marriage that she had only an clause of Conquesce and no special provision yet a bond originally taken in the name of the eldest Son during the Marriage was sustained against her unless there were not sufficient means for a competency to her Aliunde in which case the Lords found the bond would be fraudulent and there is no question the Lady was very well advised in relation to these Cases she desired advice in as how to convoy her Joynture which was done to so good effect that the Defunct with all the Influence and right of a Husband could never come to one sixpence of the North-Countrey Joynture but these Clauses were never advised by a Lawyer to have any special effect whereof the Lords may be satisfied by the Pursuers own Assertion that 3000 Merks of Joynture was offered and was there ever any Lawyer that would prefer a general Clause of Conquesce to a special Provision which has a preference as to Moveables to all Creditors and is usually the best secured real Debt so that the neglecting of a special Provision is a demonstration that there was no Liferent under prospect and that the Clause of Conquesce was adjected of meer Stile and Formality And Sir Andrew Gilmour who drew the Contract would never have agreed to so unreasonable Clauses as these in the Contract are according to the Pursners Interpretation he being the Defuncts Brother in Law To the Fourth There was nothing ever decided contrary to what is now pleaded for the Decision finding That the Wife had Right to the value of a Fishing in Aberdeen which by the custom of the place could not be bruiked by a Woman was most juâ—◠〈…〉 like the Earl of Dumfermling Acquiring Lands in the Name of his eldest Son was justly found To have done a fraudulent Deed to evacuate the Conquesâ—e Yet betwixt the same Parties it was
allowed and made free to him in the first place and that the haill debts due by the Husband when he died whether contracted before or after the second contract of Marriage ought to be payed and affect the Conquesce in the Second place and that the Relict could only have right to the half of the superplus of the Conquesce if any was after the two Deductions above-written It is observable that albeit there were two Bills given in craving the said interloquitor to be rectified upon thir grounds 1 That a considerable part of the 11000 pounds to which the Husbands Estate was estimat was exhausled by payment of Debts due before the second Contract and 2 That the 4000 pounds gifted by the Defunct to his oun Heire of Line who was obliged to Implement the Fathers obligment anent the Wifes lyfrent might at least be sustained as Conquesce Both bills were refused and the first interloquitor adhered to So that the Husbands Estate which was once for the most part exhausted by the foresaid gratuitous Donations and antecedent Debts as said is immediately after the second Marriage and before any Conquesce could be made was Sustained to be made up to the Heir out of the Subsequent Conquesce without allowing the Relict her lyfrent of the equal half thereof conform to the obligments of the Contract albeit her other provisions were so mean and inconsiderable And the principal decreet is produced marked with several letters of the Alphabet directing to the grounds therein pleaded and determined and herein repeated and the sorsaid Decision was so solemn that the Lords declared to the Procurators on both sides Judicialy that they would observe the said Decision in all such cases thereafter 20 December 1665. Laird of Kilbocho contra Lady Kilbocho The Lords â—oâ—nd that a 〈◊〉 was obliged to pay me annual-rents of the price of Conquest Lands notwithstanding that she was provided Simply and absolutly to the Conquesce and that the Heir was sufficiently able to have payed the same And by this Decision as also by an other Decision betwixt the Earls of Dumfermling and Callendar The Practick alledged upon by the Pursuer in the case of the Countess of Dumfermling in Anno. 1625 is fully answered and elided THE INTERLOQUITOR Edinburgh 29 January 1690. THe Lords having advised the debate Finds that the clause of Conquesce lybelled did not hinder the deceased Lord Collingtoun to spend his yearly revenue as he thought fit And find that the Lady be vertue of the clauses in the Contract has right to the Lyfrent of all sums which belonged to him the time of his entering into the second Marriage or the time of his decease But they find that albeit it were cleare that he had releived his old Lands and Estate of Debts which affected the same the time of his entering into the second Marriage by sums acquired during the second Marriage Yet that the Lady by no clause in the contract has any right to pursue for the lyfrent of the Lands releived by such sums And that the Lord Collingtoun might have imployed the sums so acquired for relieving his Estate of Debts affecting the same the time of entering into his second Marriage Notwithstanding of any clause in the Contract Sic Subscribitur JAMES DALRYMPLE I.P.D. The Ladies Appeal and Protestation I Dame Margaret Areskine Lady Castle haven Considering that in the Process pursued at my Instance before the Lords of Session against Sir James Foulis now of Collingtoun The saids Lords be their Interloquitor bearing date the 29 of January instant Found that the Clause of Conquesce Lybelled did not hinder the Deceast Lord Collingtoun to spend his yearly Revenue as he thought fit And found that the Lady be vertue of the Clauses in the Contract has right to the Liferent of all sums which belonged to him the time of his entering into the second Marriage or the time of his Decease But they found that albeit it were clear that he had reliev'd his old Lands and Estate of Debts which affected the same the time of his entring into the second Marriage by sums acquired during the second Marriage yet that the Lady by no Clause in the Contract has any Right to pursue for the Liferent of the Lands relieved by such sums and that the Lord Collingtoun might have imployed the sums so acquited for relieving his Estate of Debts affecting the same the time of entering into his second Marriage notwithstanding of any clause in the Contract By which Interloquitor I conceive my self prejudged and that by the Claim of Right it is provided That any person so prejudged may appeal for remeed of Law to an higher Judicature I do therefore by thir presents Appeal and protest from the saids Lords of Session to the High Court of Parliament for remeed of Law as said is and intreats your Lordships to stop the said Interloquitor till it be heard in Parliament Sic subscribitur M. ARESKINE The Ladies Petition to the Parliament Unto His Grace His Majesties high Commissioner And to the Right Honourable the Nobles and Barrons and Burgesses Assembled in Parliament Dame Margaret Areskine Lady Castle-haven HUMBLY SHEWETH THat the late Sir James Foulis of Collingtoun having long sought your Petitioner in Marriage did offer his House and Yards and 3000 Merks be Year to me in Jointure Which he consest was all he had Your Petitioner having at last consented to Marry but did refuse to take the 3000 Merks Since it was cleare that his Children in his first Marriage by his first Lady should then want altogether Yet he said though they should want he would secure me in that But when I told him I would not deale so with his Children but Condescended to accept of his House and Yards and the Life rent of all Sums of Money Bands or Heretage which he should Conquess or acquire and of all sums of Money due to him which he shall happen to receive during the said Marriage And he obliges himself to Employ the same and take the Rights thereof to himself and Your Petitioner the longest liver of us two in Liferent Of this he was so well pleased that he desired it might be secured as my Lawyers should desire which was accordingly done in as express Terms as they thought possible upon this Marriage following And what ever provision was made in the Petitioners Favours in that Contract as to my own former Estate Yet he possessed and employed a considerable part of my Estate to entertaine his Sons Family and to pay his former Debt After his Decease your Petitioner little doubted of the Possession of what was so fairly Contracted But being forced to Suit it before the now Lords of Session They by their Interloquitor of the 29th of January last Did Find That the clause of the Contract did not hinder the Lord Collingtoun to Employ 〈…〉 â—â—ms he acquired during the second Marriage for payment of the Debt before he entered in the second
Marriage Though this be expresly contrary to the Tenour and Faith of the second Contract by which he is expresly bound to Employ all Sums he should Acquire so as your Petitioner might Life-rent them But least the Iniquity designed should not be cleare enough since no clause in the Contract could prejudge his Creditors or hinder them to affect these new Acquired Sums The saids Lords by another Clause declared that if he Employed his Money to pay his Debt and so to relieve Lands formerly morgaged by him to Creditors yet that your Petitioner by no means could pretend to the Rent of these Lands so redeemed by the Money which by the Faith of the Contract was destinate for your Petitioner by which strange Sentence all Faith of Contracts is violated and Law which should protect Widdows is wrested to their Ruine and Fraud and indirect Dealings is not only Encouraged but owned to be the Design of the Law for whatever might be pretended for employing the Money acquired during the Marriage for releiving his morgadged Estate yet what can colour the Fraud and Iniquitie of employing it so contrary to the Tenour and express Faith of the Contract and the Equity of the Conveyance as to force the profite of that Money to descend on the Lord Collingtoun's Son in Defraud of his Wife by whom he profited considerably and Consequently was as onerous and Just a Creditor as he had or could have This being so clearly to Impugne Law Equity Justice and Honesty that none who knew the late Lord Collingtoun thinks he designed so foul a Fraud nor could ever such an Interpretation of this Contract fall under the Prospect of so Honest a Man Albeit your Petitioners Lawyers did fully Redargue all these Quibbles which my Opposites Propond and that all Lawyers who were not Blinded with Personal concern doe look on this Sentence alike opposite to Law as to Equity and the Interest of Mankind Yet no Address to the greatest part of these Judges would procure Redress or Delay to your Petitioner whereupon I was permitted though with Difficulty to appeal to His Majesty and his Parliament as the last Result and great Sanctuary of the Injured and Opprest That your Grace and Lordships who sits in the highest Capacity of Law should have Occasion to Vindicate the Kings Laws from the staine of being a covering for Fraud on Subtil or Wrested Notions And to shew the Nation that Faith Truth and Honesty are what Law is appointed to Sustaine and to let the People find the Judgement of the Nation can discern Equity from Fraud and is the best and last Refuge to the Injured Your Petitioners Appeal in this Matter being given in the 31 January last it could not procure so much as Delay but Decreet was given out MAY IT THEREFORE PLEASE YOVR GRACE and Lordships to grant warrand to Cite the Lord Collingtoun or any others ye shall think fit to Compeare before Your GRACE and Lordships on 24 Houres Warning he being a Member of your Meeting and to call for the process and Appeal and to Judge therein as seems Good and Just And in this small Case to shew the Nation what safety they have in their own Representatives when called by His Majesties Sacred Authority and what differences there is by Judging according to Equity and express meaning of Parties and Judging by Vnthought of Subtilties And Humbly BEGGS That the Tenour of the Contract be considered in the plain Sense and just effect And Decern the Lord Collingtoun to pay the Petitioner the Interest of what Money his Father received during the Marriage belonging to him and that for all Years since his Fathers Death and in time coming during the Petitioners Life And to remit to the Lords of Session to receive what probation Your Petitioner shall adduce for proving what Money his Father did receive belonging to him during the Marriage and that they may give therein Decreet accordingly And Your Petitioner shall ever Pray c. IF the Members of Parliament or any other persons shall be pleased to peruse the above-written Process they may have a much surer ground to found their Judgment and Determination upon in this Case which is important to the Parties but more in the preparative to the Kingdom Than to rely upon the bare assertion of either Party It is no new thing that Parties should be perswaded of the Iniquity of any Sentence which cuts them off from their Hopes and Expectations and that Complaints and Murmurings should arise upon these Sentences which alwayes were and may be expected and therefore it was ever the care of our Law-givers that neither the Judicatures nor the Persons of our Judges should be Vilified or Contemned seing they Represent the Kings Person in the Administration of Justice Nor that the Judges should be allowed to abuse the Authority that is committed to them by doing Wrong or Unhonesty Therefore shortly after the Institution of the Colledge of Justice it is provided by the 68 Act. 5. Parl. Ja. 5. That the Lords of Session should be had in special Honour and that no Credit be had to any that Murmur against them But they shall be called bâ—fore the King and if they be found Culpable they shall be punished after the quality of their fault and if they be found Clean and Innocent the Person complaining shall be punished with rigour and never have Credit with the King again This Statute and all others in relation to the Session are yet standing Laws and are sutable and agreable to that Article in the Instrument of Government Whereby it is provided That it is the Right and Priviledge of the Subject to protest for remeed of Law to the King and Parliament against Sentences pronounced by the Lords of Session Which doth not Authorize every Protestation at the pleasure of the Party but only in these Cases wherein Murmurs and Complaints were allowed by our Antient Laws And if such Protestarions be now found Injurious the Party protesting is punishable by the former standing Law against unjust Murmurers and Complainers No Protestation for remeed of Law having formerly occurred since the Claime of Right it is of the greatest importancy that the extent and meaning of the said Article of the Meeting of Estates be carefully and narrowly considered that no practice follow upon it which might tend to render the properâ—y and possession of the Subject more Doubtful Disquiet and Unsecure than formerly contrary to the cleare designe thereof By which it was intended That an important right and priviledge of the Subject should be asserted and declared In the first place then the foresaid Declaration does not Warrant nor Authorize Appeals but only Protestations for remeed of Law On the contrary the same doth clearly Import a Prohibition of Appeals by the last Provision thereof That such Protestations shall not stop the Execution of the Sentences of the Lords Which is equivalent as if the Meeting of Estates had expresly discharged Appeals seing